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Yates v. Bailey12/6/2000
day period ran without a motion being filed to set aside the order of dismissal. Thereafter, however, plaintiff timely moved for a devolutive appeal.
In Domonter v. Breaux Bridge Partnership, 99-1226 (La. App. 4th Cir. 02/02/00), 758 So. 2d 828, and Adams v. Cytec Industries, Inc., 99-2563 (La. App. 4th Cir. 06/14/00), 2000 WL 768847, the Fourth Circuit held that the ex parte order of dismissal was an interlocutory judgment and not a final appealable judgment. They reasoned that a final judgment was one that has been rendered after a contradictory hearing to determine the validity of the ex parte order. In Domonter, the plaintiff appealed the trial court's ruling of abandonment just six days after the order was signed and before the thirty period to file a motion to set aside the ruling had run. In Adams, the plaintiff filed an untimely motion to set aside the ruling of abandonment and then filed an appeal two weeks later, before the hearing on the motion to set aside was held. The appellate court remanded the cases back to the trial court, holding that the rulings on abandonment were not final judgments when the appeals were taken by the plaintiffs. These cases are distinguishable; however, if not, we decline to follow their holdings. In the instant matter, once the 30 day period allowed for plaintiff to move to set aside the ex parte dismissal order had lapsed, that order became a final appealable judgment.
Conclusion
For these reasons, the judgment of the trial court dismissing plaintiff's action on grounds of abandonment is affirmed. Costs of this appeal are hereby assessed to plaintiff-appellant, Gary N. Yates.
AFFIRMED
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